Bench Trial Objection

Bench Trial Objection

At a bench trial defendant Michael Kelly was convicted of possession of cocaine and marijuana.  State v. Kelly, 285 P.3d 1026, 1027 (Kan. 2012).  Before his bench trial, an evidentiary hearing was held where the judge denied a motion to suppress drug evidence.  Id.  Kelly, wishing to appeal the earlier denial of his motion to suppress argued that he did not need to object during his bench trial to keep his appeal for the evidentiary hearing.  Id. 

The Supreme Court of Kansas held that defendant Kelly “timely interposed an object to the admission of evidence by filing a pretrial motion to suppress illegally obtained evidence.”  Id. at 1030. Thus, the court remanded the case back to the appellate court to determine whether the district judged erred when denying Kelly’s motion to suppress. Id.

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Procedural Sentence Challenge

Procedural Sentence Challenge

Defendant Jarrod Duran was convicted in district court for possession of a firearm by a convicted felon, after he plead guilty.  United States v. Duran, 11-1308, 2012 WL 4947031, at *1 (10th Cir. 2012).  The district court found that Duran’s previously convicted crime of aggravated assault in Texas was a crime of violence and sentenced him to 41 months.  Id.  Duran, on appeal, challenges his sentence, arguing that his assault conviction was not a crime of violence.  Id.

The Court of Appeals for the 10th Circuit agreed with Duran.  Id.  The court reasoned that only crimes with a mens rea of intent or purpose may qualify as crimes of violence.  Id.  at *3.  Under Texas law, “[T]he elements of aggravated assault are 1) the defendant 2) intentionally, knowingly or recklessly 3) caused bodily injury to another and 4) used a deadly weapon.”  Id. at *4.  Thus, the court determined that “aggravated assault under Texas law could be committed with a reckless state of mind.”  Id. at *5.  Therefore, the court remanded Duran’s sentencing because the crime of aggravated assault under Texas law is not a categorical crime of violence.  Id.


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Probation & Jail Time Credit

Probation & Jail Time Credit

Heather Hopkins was convicted and sentenced in two different cases.  State v. Hopkins, 285 P.3d 1021, 1022 (Kan. 2012).  For aggravated burglary and obstruction of legal process Hopkins was sentenced to 36 months of probation, with an underlying sentence of 41 months.  Id.  For possession of cocaine Hopkins received 18 months of probation, with an underlying sentence of 11 months.  Id.  As part of her possession conviction Hopkins was also ordered to complete mandatory drug abuse treatment.  Id.

After serving a short period in a drug abuse inpatient treatment, Hopkins violated her probation and left the facility.  Id.  At her revocation hearing, Hopkins argued that while she did violate her probation, she should be credited the time she spent in the facility for her robbery sentence.  Id.  The district court did not hold for Hopkins argument, and instead revoked her probation in both cases and ordered her to serve the two sentences consecutively.  Id.  The Kansas Court of Appeals affirmed that decision.  Id.       

As the Kansas Supreme Court noted, “K.S.A. 21-4614a(a) broadly grants a probationer jail time credit in “any criminal action in which probation … is revoked,’ for the time ‘spent in a residential facility while on probation.”  Id. at 1024.  Thus, the court held that Hopkins should have been awarded jail time in her robbery sentence for the time she spent in the drug abuse treatment facility because treatment was not a condition of her burglary case.  Id. at 1025. 

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Proposition 36 Promises An End To California's Punitive 3 Strikes Law

 http://www.commondreams.org/view/2012/10/19-1

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